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Opposition threatens contempt motion over Afghan torture documents

The opening volley was fired Thursday over what could become a protracted constitutional war over Parliament’s right to know versus the government’s right to keep secrets.

Canadian troops lead Afghan detainees into custody in this January, 2004 file image. (DND HANDOUT)

By Joan BrydenThe Canadian Press

Thu., March 18, 2010

OTTAWA—The opening volley was fired Thursday over what could become a protracted constitutional war over Parliament’s right to know versus the government’s right to keep secrets.

Fed up with months of government foot-dragging on their demand for uncensored documents related to the alleged torture of Afghan detainees, opposition MPs sought a formal ruling from the Speaker of the House of Commons that their parliamentary privileges have been breached.

Should Speaker Peter Milliken agree and the government continue to balk at releasing the documents, opposition MPs said they’re prepared to follow up with motions censuring the government — and three top cabinet ministers in particular — for being in contempt of Parliament.

That theoretically could result in the incarceration of the ministers for the remainder of the parliamentary session.

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Liberal MP Derek Lee has drafted a motion that goes even further, ordering the Commons sergeant-at-arms to seize the documents. That could well result in the government challenging Parliament’s authority in court.

Lee indicated Thursday that he won’t necessarily proceed with that motion and is prepared to work on alternative approaches with other parties.

The NDP and Bloc Quebecois have jointly drafted a somewhat less confrontational motion that attempts to allay the government’s concern that public release of some material could jeopardize national security or the lives of Canadian soldiers.

Under their joint motion, the all-party committee on Afghanistan would have three weeks to produce rules to ensure its members can view all documents while still protecting the secrecy of sensitive information.

The government would have a week after that to respond. Continued refusal would trigger a contempt motion against Defence Minister Peter MacKay, Foreign Affairs Minister Lawrence Cannon and Justice Minister Rob Nicholson.

“We are aware of national security concerns and we have indicated publicly our willingness to discuss these valid concerns and provide a method for protecting them,” New Democrat MP Jack Harris told the Commons.

“However, we are not prepared to compromise on Canadians’ right to have an accountable government that does not use national security as a catch-all phrase to cover up embarrassing or damaging information.”

Liberal foreign affairs critic Bob Rae suggested that committee members could be sworn in as privy councillors, which would require them to swear an oath of confidentiality.

“It is perfectly possible for unredacted documents to be seen by members of Parliament who have been sworn in for the purpose of seeing these documents,” he said.

The government has asked former Supreme Court justice Frank Iacobucci to look at the documents and offer an opinion as to how much can be released. But the opposition believes that’s just a stalling tactic.

Political scientist Ned Franks, a parliamentary procedure expert, said the government is right to be concerned about releasing sensitive information to MPs, even if they promise to keep it secret.

“The House of Commons at present is so virulently partisan that I think the pressures on the members of a committee like that would be immense to reveal the naughty bits,” Franks said in an interview.

“Parliament’s a leaky sieve and I don’t trust its ability to hold confidences.”

Franks said the NDP-Bloc approach is the “closest I’ve seen to an intelligent solution” to the impasse.

But he said Lee’s idea of ordering the sergeant-at-arms, normally a largely ceremonial figure, to seize the documents is “breathtaking” and would likely lead to a court challenge.

That’s something he said MPs should avoid because the courts might well reject their argument that there are no limits on Parliament’s power to demand documents.

“It’s certainly a very real risk.”

As for contempt of Parliament, Franks said he’s unaware of any cabinet minister being censured in such a way. Contempt motions were used in the distant past to punish reluctant witnesses who were normally incarcerated in a hotel.

Today, Franks said such a motion would be largely symbolic.

“It’s really a bunch of obstinate brats banging their heads together rather than trying to solve a problem.”

Milliken said he wants to hear from MacKay, Cannon and Nicholson before taking some time to consider the points of privilege raised Thursday and issuing a ruling.

Liberals, who’ve seemed the most reluctant to force a confrontation over the documents, said they’ll wait to see how Milliken rules and what actual motions are subsequently put forward before deciding what route to take.

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